J Edward v Tavistock and Portman NHS Foundation Trust

An employer alleging failure to mitigate bears the burden of proving that the claimant acted unreasonably. It is insufficient to show that a proposed step would have been reasonable. A tribunal must identify and apply that test, with adequate reasons.

Where unreasonable failure to seek alternative employment is established, the tribunal should identify the omitted steps, assess when they would have produced alternative income, and calculate the resulting differential loss. A percentage reduction across a past-loss period will ordinarily be wrong under Gardiner-Hill, although the assessment remains a broad evaluative counterfactual and does not require identification of a particular job.

Future loss may be assessed on the basis that a claimant will take reasonable mitigating steps. A reasoned estimate of when equivalent work is likely to be secured will not be perverse merely because it is necessarily predictive.

The claimant, formerly an NHS band 5 data officer, was downgraded to band 4 and dismissed without redeployment. The Employment Tribunal found that the respondent had victimised him by failing to redeploy him to a band 4 role. It held that there was a 40% chance that, even if redeployed, he would have left after a four-week trial period.

At remedy, the tribunal reduced past loss by 50% from November 2019 to December 2020 because the claimant had not applied for NHS band 4 posts. It awarded six weeks’ future loss after the end of his subsequent fixed-term employment. The claimant appealed the mitigation, future-loss, pension and injury-to-feelings calculations. The respondent cross-appealed aspects of the pension and future-earnings calculations.

The central issue was whether the tribunal had applied the correct test and method when reducing compensation for alleged failure to mitigate.

1. Appeal allowed in part. The tribunal’s past-loss mitigation finding was set aside and remitted for rehearing. Its reasons contained no legal self-direction and did not show that it had placed the burden on the respondent or asked whether the claimant had acted unreasonably in failing to apply for band 4 jobs. Saying that the claimant “should have” applied was inadequate. The governing approach was that stated in Cooper Contracting and Wilding.

2. The tribunal had also erred by applying a 50% discount to all past loss from November 2019 to December 2020. Following Gardiner-Hill, it should determine what steps it was unreasonable not to take, when those steps would have generated alternative income, and the amount of that income. The assessment is made on a broad evaluation of the evidence. It need not identify a particular job which would have been obtained, but should fix an appropriate date and differential income on the balance of probabilities.

3. The EAT declined to depart from the established Gardiner-Hill approach. Loss-of-a-chance authorities might require consideration in a suitable case, but the issue did not require resolution here and the evidence concerning NHS band 4 work was capable of a conventional assessment.

4. The tribunal’s six-week award for future loss was adequately reasoned and was not perverse. In assessing future loss it could assume that the claimant would take reasonable steps to mitigate. Its finding that his changed circumstances improved his prospects of obtaining band 4 work was open to it.

5. By consent, the EAT restored the injury-to-feelings award from £6,000 to £10,000, corrected the timing of the 40% pension-loss reduction, and allowed the respondent’s cross-appeal concerning pension contributions and higher earnings in the new employment. The remaining calculations, including tax grossing-up and past-loss interest, must be recalculated after the mitigation rehearing.

The case was remitted, if practicable, to the same tribunal.

• Employment Appeal Tribunal: Allowed the appeal in part, set aside the past-loss mitigation decision, and remitted that issue for rehearing: [2023] EAT 33.
• Employment Tribunal, London Central: Remedy decision sent to the parties on 13 May 2021. It awarded compensation following a liability decision sent on 6 April 2020, which found victimisation in the failure to redeploy the claimant.